Com. v. Harris

• Decision Date: 16 November 2005
• Citation: 888 A.2d 862
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. William HARRIS, Appellant.
• Court: Pennsylvania Supreme Court

888 A.2d 862

COMMONWEALTH of Pennsylvania, Appellee, v. William HARRIS, Appellant.

Superior Court of Pennsylvania.

Submitted September 6, 2005.

Filed November 16, 2005.

COPYRIGHT MATERIAL OMITTED

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: STEVENS, LALLY-GREEN, and KELLY, JJ.

OPINION BY STEVENS, J.:

¶ 1 Following a jury trial which commenced on November 6, 2003, Appellant, William Harris, was found guilty of Robbery¹ and Possession of an Instrument of Crime.² This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on February 2, 2004, at which time Appellant was sentenced to twenty-five (25) years to fifty (50) years in prison followed by five (5) years' consecutive reporting probation, along with the requirement to pay court costs. We affirm.

¶ 2 The salient background information and procedural history was developed at the two suppression hearings and the trial held in this matter. On December 18, 2001, shortly after 9:00 p.m., Ms. Deitra Ransom was working as a cashier at a Sonoco A-Plus Market located at the intersection of Front and Oregon Streets in South Philadelphia. N.T., 11/6-10/03, at 98. Ms. Ransom noticed a man, whom she identified at trial as Appellant, peer around the corner through a window to her left. Shortly thereafter, Appellant approached Ms. Ransom as she sat behind her register, lifted his shirt to reveal a gun, and declared he "doesn't have all day." N.T., 11/6-10/03, at 99-100. He dropped a bag and Ms. Ransom proceeded to fill a different grocery bag with money from her register and that of her co-worker, Mon Mean. N.T., 11/6-10/03, at 100. Appellant fled the store with approximately eight hundred ($800.00) dollars in small currency. N.T., 11/6-10/03, at 101.

¶ 3 Officers arrived on the scene, and Ms. Ransom described the perpetrator as being approximately six-foot-two or six-foot-four, about 250 pounds and having a medium to dark brown complexion. He had an unshaven face and a cleft in his chin. He was wearing a black Raiders cap, sunglasses, a quarter length leather jacket with a hood, a white shirt, black running pants and sneakers. N.T., 11/6-10/03, at 103-104. While Ms. Ransom was unable to identify Appellant from the approximately seventy-five (75) photos she was shown on the night of the incident, she was able to identify him the next time she was contacted by police eleven (11) days later, at the Preliminary Hearing while testifying on February 25, 2003, and at trial in November of 2003. N.T., 11/6-10/03, at 106-108.

¶ 4 Ms. Mean, who had been preparing pizza at the time in question, testified that she saw Ms. Ransom take money from the former's register and hand it to a man. After the man ran from the store, Ms. Ransom explained they had been robbed, and Ms. Mean ran after him. She saw a light grey four-by-four SUV with a Chevy sign printed across its back leave the parking lot rapidly. She also believed there may have been a maroon color on the bottom of the vehicle. N.T., 11/6-10/03, at 77-79, 102.

¶ 5 On December 28, 2001, Officer Michael Washington and his partner, Officer Fairbanks, were working in the area of Broad and Washington Streets in South Philadelphia. N.T., 11/6-10/03, at 30-31. At approximately 8:40 p.m., the officers received information that a black male who was approximately 6'4" to 6'5" tall and wearing a blue "hoodie" had just robbed the Pep Boys store at Delaware and Washington Avenues at gunpoint and had fled the scene in a silver Chevrolet Suburban. N.T., 10/22/02, at 10-11. The officers were approximately twelve to thirteen blocks away at the time, and their attention was attracted to Appellant's vehicle because of the flash information. In addition, Officer Washington also observed a male wearing a blue "hoodie" operating the vehicle and that the inspection on the vehicle had expired July, 2001. N.T., 10/22/02, at 11.

¶ 6 The officers activated the overhead lights and air horn of their patrol car and Appellant pulled over. N.T., 10/22/02, at 11-12. Officer Washington described the vehicle as a Chevy SUV, with silver on the top portion and maroon toward the bottom. N.T., 10/22/02, at 14. As Officer Washington approached Appellant's vehicle, he saw Appellant in the driver's seat and noticed him make a movement under the seat between his legs. N.T., 10/22/02, at 13-14. Officer Washington ordered Appellant to place his hands on the steering wheel and asked him repeatedly to produce his license, registration and insurance for the vehicle. Appellant failed to respond and made another movement between his legs. Officer Washington asked Appellant to exit his vehicle and as he did so, Officer Washington saw a silver object that appeared to him to be a gun on the floor. N.T., 10/22/02, at 14. Officer Washington brought Appellant to the back of the car and asked Officer Fairbanks to retrieve what was on the floor. N.T., 10/22/02, at 14-15. The object turned out to be a silver and brown toy handgun with black electrical tape on it. N.T., 10/22/02, at 15. Shortly thereafter, Appellant was identified by the female Pep Boys employee as the man who robbed her N.T., 10/22/02, at 17-18.

¶ 7 On December 29, 2001, Detective Anthony Catalini took an eight (8) man photo array to Ms. Ransom's residence. After studying the array, Ms. Ransom identified Appellant as the man who robbed her. N.T., 6/24/02, 8-9; 11/6-10/03 147-151. Appellant was then charged with the December 18, 2001, robbery at the Sunoco A-Plus Market.

¶ 8 On June 24, 2002, Appellant litigated a suppression motion, at which time he alleged that the Philadelphia Police Department improperly employed initial identification procedures. N.T., 6/24/04, at 3. The suppression court denied that motion.

¶ 9 On October 22, 2002, Appellant litigated a second component of the suppression motion in an effort to suppress the gun recovered from the Chevrolet Suburban. Appellant posited the police had neither reasonable suspicion nor probable cause to stop or search Appellant's vehicle on December 28, 2001. N.T., 10/22/02 at 6. The suppression court denied that component of the motion as well.

¶ 10 Beginning on November 6, 2003, Appellant was tried before a jury. On November 12, 2003, the jury convicted Appellant of robbery and possession of an instrument of crime. Following several continuances so that it may obtain accurate information regarding Appellant's prior convictions, the sentencing court sentenced Appellant to a mandatory minimum term of twenty-five (25) years to fifty (50) years in prison pursuant to 42 Pa.C.S.A. § 9714. The instant appeal followed.³

¶ 11 Appellant raises four grounds for appeal. First, he claims the suppression court erred in denying his motion to suppress out-of-court and in-court identification evidence in violation of both the United States and Pennsylvania Constitutions where the photographic lineup was suggestive and tainted all subsequent identifications. Second, Appellant argues the suppression court erred in failing to suppress the sport utility vehicle and toy gun recovered from the vehicle in violation of the search and seizure provisions of the United States and Pennsylvania Constitutions, where the search was warrantless and without probable cause or reasonable suspicion. Third, Appellant contends the sentencing court lacked jurisdiction to impose an enhanced sentence of twenty-five (25) years to fifty (50) years in prison because the robbery information did not allege the prior convictions necessary for enlarging the statutory maximum. Finally, Appellant states the "three strikes" statute⁴ violates the Pennsylvania and United States Constitutions. We will discuss each issue in turn.

¶ 12 Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003), cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004). A photographic identification is unduly suggestive if, under the totality of the circumstances, the identification procedure creates a substantial likelihood of misidentification. See Commonwealth v. Natividad, 565 Pa. 348, 773 A.2d 167 (2001), cert. denied, 535 U.S. 1099, 122 S.Ct. 2300, 152 L.Ed.2d 1056 (2002); Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996). In Johnson, supra, the trial court reviewed the photographs and determined that the photographic arrays were not unduly suggestive and that the identifications were reliable and therefore admissible. Because the trial court's conclusion was supported by the record, the Court found there was no abuse of discretion and the appellant's claim the out-of-court identifications were tainted therefore failed.

¶ 13 Our Supreme Court has determined a photographic identification is unduly suggestive when the procedure creates a substantial likelihood of misidentification. Photographs utilized in lineups will not be deemed unduly suggestive if the suspect's picture does not stand out more than those of the other individuals included in the array and the people depicted in it all exhibit similar facial characteristics. Commonwealth v. Fisher, 564 Pa. 505, 522-523, 769 A.2d 1116, 1127 (2001) (citing Johnson, supra). In that case, the Court noted the pictures were selected by a computerized system based upon similarity to the appellant and found the trial court did not abuse its discretion in reviewing and finding nothing unduly suggestive in the array.

¶ 14 Herein, Appellant contends in his brief that the photo array was tainted in that the original photo spread could not be produced at trial. Detective Anthony Catalini testified that on ...